Opinion
Argued January 3, 1968
Decided January 18, 1968
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department.
Saul S. Goldman and Isadore B. Hurwitz for appellant-respondent.
Benjamin Laskin and Hyman Amsel for respondent-appellant.
Upon the appeal by the licensee: Order affirmed, with costs. We agree with the State Liquor Authority that charges Nos. 2, 3 and 4 were sustained by substantial evidence. It should be noted that the Appellate Division, lacking power to find new facts, may not reverse on the facts. (See Matter of Shell Cr. Sailing Club v. Board of Zoning Appeals of Town of Hempstead, 20 N.Y.2d 841.)
All concur, Judge KEATING only as to charges Nos. 2 and 3, except Chief Judge FULD and Judge BERGAN who dissent and vote to reverse and grant the petition on the ground that the determination of the State Liquor Authority is not supported by substantial evidence. (See, e.g., Matter of Migliaccio v. O'Connell, 307 N.Y. 566; Matter of 2125 Barney's Inc. v. New York State Liq. Auth., 13 N.Y.2d 662.)
Upon the cross appeal by the State Liquor Authority: Cross appeal dismissed upon the ground that the State Liquor Authority is not a party aggrieved. (See, e.g., Oppenheimer v. Oppenheimer, 11 N.Y.2d 838.)
Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, KEATING, BREITEL and JASEN.